Madras High Court
T.S.Sundaram vs State By on 26 April, 2010
1 IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 01.10.2021 PRONOUNCED ON: .10.2021 CORAM THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN Crl.A.Nos. 289, 296 & 323 of 2010 Crl.A.No. 289 of 2010:
T.S.Sundaram ... Appellant/4th Accused
Vs.
State By:
Deputy Superintendent of Police
Organised Crime Unit (Chennai City)
CBCID
Chennai – 600 002.
Crime No. 6/AC/2002 ... Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 (2) Cr.P.C., against the Judgment dated 26.04.2010 on the file of IV Additional Sessions Judge, Chennai in C.C.No. 21 of 2004 convicting the appellant for offences under Section 120-B, 419 read with 120-B, 467, 468, 471 read with 120-B IPC and Section 13(1)(d)(ii) of the Prevention of Corruption Act and sentencing him to undergo 6 months rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo 3 months simple imprisonment for the https://www.mhc.tn.gov.in/judis 2 offence under Section 120-B IPC, to undergo 2 years rigorous imprisonment and to pay a fine of Rs.5,000/- in default to undergo 3 months simple imprisonment for the offence under Section 419 read with 120-B IPC, to undergo 5 years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default to undergo 3 months simple imprisonment for the offence under Section 13(1)(d)(2) of the Prevention of Corruption Act. No sentence was imposed on the appellant for the offences under Section 467, 468, 471 read with 120-B of the IPC. The sentences have been directed to run concurrently. The appellant has not paid the fine.
*** Crl.A.No. 296 of 2010:
K.Kannan ... Appellant/9th Accused
Vs.
State By:
The Deputy Superintendent of Police
Organised Crime Unit (Chennai City)
CBCID
Chennai – 600 002.
Crime No. 6/AC/2002 ... Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 (2) Cr.P.C., against the Judgment dated 26.04.2010 made in C.C.No. 21 of 2004 passed by the learned IV Additional Sessions Judge, Chennai. The Trial Court convicting and sentencing the appellant/accused to undergo 6 months R.I., and fine of Rs.5,000/-, in default 3 months simple imprisonment for the offences under https://www.mhc.tn.gov.in/judis 3 Section 120-B of IPC, to undergo 2 years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default 3 months simple imprisonment for the offences under Section 419 read with 120-B of IPC and he sentence to undergo 5 years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default 3 months simple imprisonment for the offences under Section 13(1)(d)(ii) of Prevention of Corruption Act read with 120-B of IPC and the sentences are directed to run concurrently.
*** Crl.A.No. 323 of 2010:
1. S.Jayaseelan
2. Govindarajaulu
3. R.Lakshmipathi ... Appellants/Accused Nos. 3, 7 and 8 Vs. State represented by:
The Deputy Superintendent of Police Organised Crime Unit (Chennai City) CBCID Chennai – 2.
Crime No. 6/AC/2002/CC ... Respondent/Complainant Prayer: Criminal Appeal filed under Section 374 (2) Cr.P.C., against the Judgment dated 26.04.2010 passed in C.C.No. 21 of 2004 by the Court of Sessions at Chennai, IV Additional Sessions Judge.
***
https://www.mhc.tn.gov.in/judis
4
For appellant in
Crl.A.No.289 of 2010 : Mr. V.Karthick
Assisted by
Mr. S.Haroon for
T.S. Gopalan & Co.,
For appellant in
Crl.A.No.296 of 2010 : Mr. S.Ashok Kumar
for
Mr. A.Amarnath &
Mr. G.Hariharan
For appellants in
Crl.A.No.323 of 2010 : Mr. C.D. Sugumar
For Respondent in
all Crl.As : Mr. E.Raj Thilak
Additional Public Prosecutor
COMMON JUDGEMENT
All the above Criminal Appeals arise out of the Judgment dated 26.04.2010 in C.C.No. 21 of 2004 passed by IV Additional Sessions Judge, Chennai.
2. The Inspector of Police, CBCID Metro Wing, Chennai, had registered a First Information Report in Crime No. 6/AC/2002/CC under Sections 120-B read with 419, 420, 464, 467, 468 and 471 IPC against (i) Viswambaran; (ii) Shanthi Vishwambaran @ Shanthi & (iii) S.P.Dayanidhi https://www.mhc.tn.gov.in/judis 5 on a complaint given by T.S.Sundaram, Manager, REPCO Bank, T.Nagar, Chennai, on 10.10.2002. The First Information Report had been marked during the course of trial as Ex. P-149.
3. In the complaint, it had been stated by the complainant T.S.Sundaram that when he was working as Branch Manager at Pallavaram Branch, S.Viswambaram, Properitor of Viswahanthi Travels and his wife Shanthi Viswambaram, had applied for loan of Rs.25/- lakhs for purchase of second hand buses. S.P.Dayanidhi stood as guarantor. He claimed that they were introduced to him by P.V.Krishna Prasad, internal auditor of the Branch. S.P.Dayanidhi offered his property at Plot No. 2860, Door No.6, Y.Block, III Street, 4th Main Road, Annanagar Chennai, as security to create mortgage. They signed the loan application on 26.04.2000. They also gave the Xerox copies of the title deeds of the document. The bank obtained legal opinion on the title deed. S.P.Dayanidhi also gave affidavits dated 03.04.2000 and 25.04.2000. The original sale deed of the property bearing Document No. 1750 of 1993 registered in the office of Sub Registrar, Anna Nagar, on 15.11.1993 by Tamil Nadu Housing Board in favour of S.P.Dayanidhi was also produced. The loan was sanctioned by the Head https://www.mhc.tn.gov.in/judis 6 Office by letter of sanction dated 18.05.2000. S.P.Dayanidhi also created mortgage by deposit of title deeds. He also filed an affidavit declaring that the property had been offered as mortgage security for the loan availed by M/s.Viswahanthi Travels, represented by its Properitor S.Viswambharan and his wife Shanthi Viswambharan. He also declared that Viswambaran is his brother-in-law, who had married his sister Shanthi.
4. Thereafter, it had been stated in the complaint that when the property was inspected, it was found to be occupied by another person, who also called himself S.P.Dayanidhi and claimed to be the actual owner of the property. The bank officials contacted the borrowers S.Viswambharan and his wife Shanthi Viswambharan but they did not give any convincing replies.
5. In the complaint, it had therefore been stated that the borrowers S.Viswambharan and his wife Shanthi Viswambharan along with one S.P.Dayanidhi had produced false and forged document with respect to the property which was mortgaged with the bank and had availed loan of Rs.25/- lakhs by letter of sanction dated 18.05.2000. It had been stated that https://www.mhc.tn.gov.in/judis 7 they had cheated the bank. It was under these circumstances that the complaint was lodged.
6. On the basis of the complaint, as stated, First Information Report in Crime No. 6 of 2002 was registered by the CBCID (Metro Police). Thereafter, the criminal law was set in motion. The investigation was then handed over to CBCID Organised Crime Unit in Chennai. Investigation was done with respect to the allegations in the complaint and on conclusion, a final report was presented before the IV Additional Sessions Judge, Chennai.
7. In the final report, the defacto complainant T.S.Sundaram was shown as A-4. A-1 was S.Viswambaran @ Vishwambaram, A-2 was his wife Shanthi Vishwambaran and A-3 was S.Jayaseelan, who was alleged to have impersonated as S.P.Dayanidhi and had produced forged document in the name of S.P.Dayanidhi and had deposited the said title deeds to enable A-1 and A-2 to obtain loan. A-4 as stated was the defacto complainant T.S.Sundaram. A-5 P.V.Krishna Prasad was the internal auditor of the branch. A-6 W.V. Rajendra Prasad is a private individual. A-7 R.Govindarajulu and A-8 R.Lasmipathi both brothers, were said to have https://www.mhc.tn.gov.in/judis 8 provided the stamp papers and seals for preparing the forged document A-9 K.Kannan had sold four second hand buses to A-1 and A-2 on the basis of the loan availed by them.
8. In the final report, it had been further stated that the accused had entered into criminal conspiracy and in pursuance of the same, A-3 had impersonated himself as S.P.Dayanidhi and had produced title deeds of a property owned by the actual S.P.Dayanidhi and had deposited the same with the REPCO Bank at Pallavaram, where A-4 was the Branch Manager and had enabled A-1 and A-2, to avail loan of Rs.25/- lakhs for the purpose of purchasing buses from A-9.
9. It has also been stated that A-5, the internal auditor, had introduced A-1, A-2 and A-3 to A-4. It was also stated that A-6, A-7 and A- 8 had arranged preparation and production of the forged documents. A-9 had sold the buses to A-1 and A-2. The final report was taken cognizance as C.C.No. 21 of 2004. Summons were issued to the accused and on their appearance, documents under Section 207 Cr.P.C., were furnished to them. Thereafter, charges had also been framed under Section 120-B (A-1 to A- https://www.mhc.tn.gov.in/judis 9
9), 420 (A-1 to A-3), 419 (A-3), 419 read with 120-B (A-1, A-2, A-4 to A-
9), 467, 468 & 471 (A-1, A-2, A-3), 467, 468 and 471 read with 120-B (A- 4 to A-9), 13(1)(d)(ii) of PC Act, 1988 (A-4) and 13(1)(d)(ii) of PC Act read with 120-B IPC (A-1 to A-3, A-5 to A-9). The charges were read over and explained to the accused. They abjured the charges.
10. To substantiate the charges, prosecution was invited to examine witnesses and produce documents.
11. Prosecution examined PW-1 to PW-31 and marked Exs. P-1 to P-159.
12. On the side of the accused, Govindarajulu (A-7) was examined DW-1. The accused also marked Exs. D-1 to D-3.
13. On conclusion of the evidence of the prosecution, the accused were questioned with respect to the incriminating evidence and their statements were recorded under Section 313 Cr.P.C.
14. Finally, by Judgment dated 26.04.2010, the learned IV https://www.mhc.tn.gov.in/judis 10 Additional Sessions Judge, Chennai, acquitted A-2, A-5 and A-6 under Section 248(1) of Cr.P.C., of all charges.
15. A-1, A-3, A-4, A-7, A-8 and A-9 however were convicted for offence punishable under Section 120-B IPC.
16. A-1 and A-3 were convicted for offence punishable under Section 420 IPC.
17. A-3 was convicted for offence punishable under Section 419 IPC.
18. A-1, A-4, A-7, A-8 and A-9 were convicted for offence punishable under Section 419 read with 120-B IPC.
19. A-1 and A-3 were convicted for offence punishable under Sections 467, 468 and 471 IPC.
20. A-4, A-7, A-8 and A-9 were convicted for offence punishable https://www.mhc.tn.gov.in/judis 11 under Section 467, 468 and 471 read with 120-B IPC.
21. A-4 was convicted for offence punishable under Section 13(1)(d)(ii) of PC Act 1988.
22. A-1, A-3, A-7, A-8 and A-9 were convicted for offence punishable under Section 13(1)(d)(ii) of PC Act 1988 read with 120-B IPC.
23. The learned Trial Judge questioned the accused under Section 248(2) Cr.P.C with respect to the sentences to be imposed. Finally, A-1, A- 3, A-4, A-7, A-8 and A-9 were convicted and sentenced to undergo 6 months rigorous imprisonment and to pay fine of Rs.5,000/-, in default 3 months simple imprisonment for offence under Section 120-B IPC.
24. A-1 and A-3 were sentenced to undergo 5 years rigorous imprisonment and fine of Rs.10,000/-, in default simple imprisonment for 3 months for offence under Section 420 IPC.
25. A-3 was sentenced to two years rigorous imprisonment and to https://www.mhc.tn.gov.in/judis 12 pay fine of Rs.5,000/-, in default simple imprisonment for 3 months for offence under Section 419 IPC.
26. A-1, A-4, A-7, A-8 and A-9 were sentenced to undergo two years rigorous imprisonment and fine of Rs.5,000/- each, in default 3 months simple imprisonment for offence under Section 120-B IPC.
27. A-1 and A-3 were sentenced for 5 years rigorous imprisonment and fine of Rs.10,000/-, in default simple imprisonment for 3 months for offence under Section 467, 468, 471 read with 120-B IPC.
28. A-4 was sentenced to undergo 5 years rigorous imprisonment and sentenced to pay fine of Rs.10,000/-, in default simple imprisonment for 3 months for offence under Section 13(1)(d)(ii) of PC Act.
29. A-1, A-3, A-7, A-8 and A-9 were sentenced to undergo 5 years rigorous imprisonment and sentenced to pay fine of Rs.10,000/-, in default simple imprisonment for 3 months for offence under Section 13(1)(d)(ii) of PC Act 1988 read with 120-B IPC.
30. The substantive sentences were directed to run concurrently. https://www.mhc.tn.gov.in/judis 13 The period already undergone by the accused was directed to be set off under Section 428 Cr.P.C.
31. Questioning the conviction and sentences, A-1 filed Crl.A.No. 311 of 2010, A-4 filed Crl.A.No. 289 of 2010, A-9 filed Crl.A.No. 296 of 2010 and A-3, A-7 and A-8 filed Crl.A.No. 323 of 2010.
32. Pending the appeals, A-1 died and therefore, Crl.A.No. 311 of 2010 was dismissed as abated. Similarly, A-8 also died and therefore, Crl.A.No. 323 of 2010 was dismissed in so far as A-8 was concerned as abated.
33. Heard arguments advanced by Mr.S.Ashok Kumar, learned Senior Counsel for A-9 in Crl.A.No. 296 of 2010, Mr.V.Karthick, learned Senior Counsel for A-4 in Crl.A.No. 289 of 2010 and Mr.C.D.Sugumar, learned counsel for A-3 & A-7 in Crl.A.No. 323 of 2010. Heard Mr.E.Raj Thilak learned Additional Public Prosecutor for the respondent in all the appeals.
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34. Mr. S.Ashok Kumar, learned Senior Counsel for A-9 pointed out that the only charge as against A-9 was that he had sold buses to M/s.Viswashanthi Travels which was run by A-1 and A-2. The learned Senior Counsel pointed out that there was no evidence produced by the prosecution to show that A-9 participated in the alleged conspiracy along with other accused and stated that as a broker in buses, he had been approached by A-1 and A-2 to sell buses and accordingly, he sold four buses to A-1 and A-2. The learned Senior Counsel very specifically pointed out that none of the witnesses examined by the prosecution had imputed that A- 9 was part of the conspiracy which primarily revolved around A-3 impersonating as another individual S.P.Dayanidhi. PW-31 the Investigating Officer during cross examination by A-9 had also admitted that none of the witnesses had stated that the higher officials had sanctioned the loan on the application of A-9. PW31 also stated that the registration certificates of the buses sold by A-9 were genuine documents. He also stated that he had not inspected the buses because there was no irregularity in the sales of the said buses. He also stated that A-9 had necessary license to act as a broker to purchase and sell vehicles. He also stated that no witnesses had spoken that A-9 had any connection with the application for loan or with respect to the https://www.mhc.tn.gov.in/judis 15 documents submitted for the loan to be sanctioned.
35. Pointing out the above statements of Investigating Officer, the learned Senior Counsel insisted that in the absence of any evidence as against A-9, this Court should interfere with the conviction and sentence imposed against A-9 and should acquit him of all charges.
36. Mr. V.Karthick, learned Senior Counsel, who appeared on behalf of A-4/Branch Manager stated that A-1, A-2 and A-3 had been introduced by the internal auditor A-5 to A-4. A-1 and A-2 were actually carrying on business as travel agents. The learned Senior Counsel stated that it is improbable to presume that A-4 would have known that A-3 was impersonating another person S.P.Dayanidhi. A3 was introduced as the brother-in-law of A-1 and brother of A-2. Learned Senior Counsel stated that as Branch Manager, A-4 had the authority to sanction loans upto Rs.1/- lakh alone and for higher value, it was the Head Office which has to sanction the loan.
37. In the instant case, it was the Head Office which had https://www.mhc.tn.gov.in/judis 16 sanctioned the loan. The title deeds of the property produced had also been forwarded for obtaining legal opinion which was also obtained in Ex.P-32. The loan application was Ex.P-34 and the appraiser report was Ex.P-35.
38. The learned Senior Counsel pointed out that during the period when the loan application was made, there was no compulsion to verify with the Sub Registrar Office either the documents or the property. It was only later in the year 2005, that the Government issued a circular that whenever title deeds are produced seeking loan, it was necessary for the bankers to refer them to the Sub Registrar Office to determine their genuinity. The learned Senior Counsel specifically pointed out charge No. 7 and stated that there was no evidence to show that A-4 had obtained any bribe. It was pointed out by the learned Senior Counsel that the Head Office sanctioned the loan and the loan amount was paid by cheque directly to A-9. He stated that A-4 had only received the loan application and had forwarded the same to the Head Office where the loan was sanctioned. Learned Senior Counsel pointed out that A-4 had committed procedural irregularity in enrolling A-1, A-2 as members. The learned Senior Counsel also pointed out the evidence of PW-4, PW-5 and PW-7. He also pointed out that the last opportunity to https://www.mhc.tn.gov.in/judis 17 prevent the fraud was not with A-4, but rather with the officials in the Head Office. The learned Senior Counsel pointed out that even PW-31 the investigating officer, during his cross examination had stated that it was only the officials in the Head Office who had sanctioned the loan. The witness also admitted that he did not get any explanation from A-4 prior to filing of the final report. In view of the above reasons, the learned Senior Counsel insisted that this Court should interfere with the sentence and conviction passed against A-4 and should acquit him all charges.
39. Mr. C.D.Sugumar, learned counsel for A-3 and A-7 stated that with respect to A-7, the only allegation was that he had supplied fake stamp papers and rubber stamps. In this connection, the evidence of PW-10 and PW-11 were referred to by the learned counsel. He also pointed out that PW-19, who was the witness for the arrest of A-7 had turned hostile. The learned counsel further stated that the specimen signatures of A-3, A-7 and A-8 had been obtained without prior permission from the Magistrate Court. The learned counsel stated that the conviction against A-3 and A-7 should be set aside and urged that the Criminal Appeal may be allowed. https://www.mhc.tn.gov.in/judis 18
40. Mr. E.Raj Thilak, learned Additional Public Prosecutor however very strongly disputed the arguments put forth on behalf of the appellants. The learned Additional Public Prosecutor pointed out the evidence of PW-1 and PW-2 and more importantly PW-3, who was the actual owner of the property and who had been impersonated by A-3. The learned Additional Public Prosecutor pointed out PW-10 had very categorically stated that A-7 was instrumental in producing the seals used in the forged document. Those seals were marked as Ex.P-45 and Ex.P-50. The learned Additional Public Prosecutor also pointed out the evidence of PW-8, Sub Registrar and also PW-11, who marked Ex.P-13. The evidence of PW- 9, the Road Transport Officer was also pointed out. The learned Additional Public Prosecutor stated that the accused could not shake the case of the prosecution that A-3 impersonated PW-2 S.P.Dayanidhi and had produced fake documents relating to the property of S.P.Dayanidhi/PW-2 and had obtained loan of Rs.25/- lakhs thereby causing direct loss to REPCO Bank. The learned Additional Public Prosecutor therefore stated that the case of the prosecution has been proved beyond reasonable doubt and urged that this Court should uphold the conviction and sentence against A-3, A-4, A-6, A-7, A-8 and A-9.
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41. I have carefully considered the arguments and perused the materials available on record.
42. A-1 Viswambaran @ Vishwambaram and A-2 Shanthi Vishwambaran are spouses. A-1 was the properitor of a Travels company Viswashanthi Travels. They wanted to purchase four second hand buses. They had no money to purchase the buses. They did not have property to provide as security for loan to be obtained from any bank. They however approached REPCO Bank, Pallavaram Branch along with A-3 S.Jayaseelan, who is the brother of A-2 Shanthi Vishwambaran @ Shanthi.
43. The case of the prosecution is that A-5, P.V. Krishna Prasad, the internal auditor of the Branch had introduced A-1, A-2 and A-3 to A-4 T.S.Sundaram, the Branch Manager. However A-3 did not introduce himself as Jayaseelan. On the other hand, he introduced himself as S.P.Dayanidhi. This was in the presence of A-1 and A-2. Naturally, this discloses a criminal conspiracy among A-1, A-2 and A-3 since A-3 is the own brother of A-2 but had introduced himself as a stranger S.P.Dayanidhi. However, I am https://www.mhc.tn.gov.in/judis 20 precluded from entering into further discussion with respect to conspiracy among A-1, A-2 and A-3 because A-1 had since died and Crl.A.No. 311 of 2010 filed by him has since been dismissed as abated. Naturally the charges against him also abate.
44. The trial Court had thought it fit to acquit A-2 of all charges. The prosecution has not filed any appeal against such acquittal. This leave out only A-3 and A-4 and A-5. It must also be pointed out that A-5 the internal auditor of the branch was also acquitted by the trial Court and there is no appeal against such acquittal. This naturally now leaves out only A-3 and A-4.
45. The point to be now considered is whether A-4 had prior knowledge that A-3 S.Jayaseelan was falsely masquerading as another individual, S.P.Dayanidhi. There is no evidence in this regard. The prosecution only presumes that A-4 would have had that knowledge. While seeking loan for purchase of the four old buses, A-3, quite apart from introducing himself as S.P.Dayanidhi also produced title documents in the name of S.P.Dayanidhi of a property sold by the Tamil Nadu Housing Board https://www.mhc.tn.gov.in/judis 21 in Plot No. 2860, Y-Block, 3rd Street, 4th Main Road, Anna Nagar, Chennai. He also signed an affidavit that the property belonged to him and that he was S.P.Dayanidhi. He also placed the said title deed as security for loan to be advanced to A-1 and A-2. On the basis of these documents and other related documents executed by the parties, A-4 sent a proposal for sanction of the loan to the Head Office. The Officials in Head Office sanctioned loan of Rs.25/- lakhs. The amount was directly paid to A-9 who was a bus seller/ broker. On receipt of Cheque for Rs.25/- lakhs, A-9 actually sold four old buses to A-1 and A-2.
46. Later, A-1 and A-2 failed to repay the loan. Enquires were made. The Officials of REPCO Bank, Pallavaram Branch, actually went over to the house, namely, Plot No. 2860, Y-Block, 3 rd Street, 4th Main Road, Anna Nagar, Chennai. They found S.P.Dayanidhi in that place. But he was not A-3, who came to the Bank. He was a stranger. He however disclosed his identity and claimed ownership of the property and disclaimed knowledge of the property having been mortgaged to the Bank. He had also mortgaged the documents with another bank.
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47. It now came to the knowledge of A-4 that A-1, A-2 and A-3 had committed serious fraud. The conduct of A-4 must be examined. He did not try to cover up the fraud. On the other hand, he opened up prosecution by giving a complaint before the CBCID (Metro Police) at Chennai. On the basis of his complaint, First Information Report in Crime No. 6 of 2002 was registered under Sections 120-B read with 419, 420, 464, 467, 468 and 471 IPC. The named accused were S.Viswambaran @ Vishwambaram, Shanthi Vishwambaram and S.P.Dayanidhi. This fact is also very significant as A-4, who gave the complaint did not know the actual name of A-3. He was still named S.P.Dayanidhi. These small minor facts are crucial which when cumulatively examined would aid in coming to a conclusion that A-4 did not actually know about the fact that S.P.Dayanidhi, who came to him in the branch along with A-1 and A-2 was not actually S.P.Dayanidhi but a stranger impersonating himself as S.P.Dayanidhi. The complaint lodged by A-4 is quite revealing.
48. The investigation was then handed over to CBCID Organised Crime Unit in Chennai. They took up further investigation and filed final report before the jurisdictional Court. In the final report, the complainant had been arrayed as an Accused /A-4. A-5 was the internal auditor and A-6 https://www.mhc.tn.gov.in/judis 23 was the financial Advisor. During the course of investigation , it had transpired that the documents which had been presented to create a mortgage had been fabricated and the stamps and the seals has been prepared and supplied by A-7 and A-8. In the final report, A-9 had also been arrayed as an accused only because he had sold the buses to A-1 and A-2.
49. Even before examining the evidence of the prosecution witnesses in detail, the cross examination of PW-31, the Investigating Officer on behalf of A-9 is extracted and he had stated as follows:-
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25
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50. Of-course, the witness had denied that A-9 had been deliberately arrayed as an Accused only to complete the case of the prosecution. He had denied that he was wrongfully arrayed as accused. Those denials to the suggestions can be straight away rejected. The admissions by PW-31 extracted above very clearly establishes that during the course of the entire trial not even one witness had spoken that A-9 was directly involved in any criminal conspiracy with respect to obtaining bank loan on the basis of false and fabricated document. PW-31 has also stated that A-9 had a license to plough trade as a broker dealing with buses or generally in vehicles. At any rate, he was doing a lawful trade.
51. On the basis of this particular evidence alone, I would interfere with the conviction and sentence of A-9 and straight away acquit A-9 of all charges. This would imply that Crl.A.No. 296 of 2010 is allowed and the conviction and sentence against A-9 is set aside. https://www.mhc.tn.gov.in/judis 26
52. Now going back to the role of A-4, as stated, he had initiated criminal prosecution by giving a complaint on the basis of which the First Information Report came to be registered. Ex.P-1 is the promissory note executed by A-1 and A-2 on 25.05.2000 undertaking to pay a sum of Rs.25/- lakhs together with interest at 18% p.a., on quarterly rests to REPCO Bank. In this promissory note, A-3 has signed as S.P.Dayanidhi, Ex.P-2 is the bond executed on the very same day by A-1 and A-2 for the loan amount of Rs.25/- lakhs. This has also been signed by A-3 as S.P.Dayanidhi. Both Ex.P-1 and Ex.P-2 had been executed in the presence of A-4, who had also appended his signature. Ex.P-3 is a letter of guarantee, again dated 25.05.2020 signed by S.P.Dayanidhi, whose signature had been verified by A-4. The residential address of A-3 was given as Plot No. 2860, Door No. 6, Y-Block, III Street, 4th Main Road, Annanagar Chennai 600
040. Ex.P-4 is again dated 25.05.2000 executed by A-1 and A-2 and also by A-3, who was termed as surety. Ex.P-6 dated 26.07.2007 is a memorandum of title deeds executed by A-3, who signed as S.P.Dayanidhi. The witnesses were A-1 and A-2. Ex.P-7 is the mortgage deed executed by A-3, who signed as S.P.Dayanidhi. It was executed on 19.05.2007. https://www.mhc.tn.gov.in/judis 27
53. After the loan had been sanctioned, the Cheque dated 26.07.2007, Ex.P-9 was issued in favour of A-9.
54. Since there was default in repayment of the loan enquiries were made. It was then identified that the documents produced were false and fabricated documents. The original document of the Anna Nagar House Property of S.P.Dayanidhi, who was examined as PW-2 was marked as Ex.P-12 and the duplicate or fraudulent document was marked as Ex.P-13. PW-2 the actual S.P.Dayanidhi categorically asserted that Ex.P-12 was the original document. The tenant of his property was examined as PW-3. PW- 8, who was Sub Registrar at Anna Nagar, Sub Registrar Office, also very categorically stated that Ex.P-9 encumbrance certificate produced by A-1, A- 2 and A-3 did not contain the signature of any of the officials of the said Sub Registrar Office. Further, he had also given the sample of an encumbrance certificate of the Sub Registrar Office which was marked as Ex.P-43. A finding had been given by the learned trial Judge that on a mere comparison between Ex.P-8 and P-43, it was evident that Ex.P-8 was a forged document.
https://www.mhc.tn.gov.in/judis 28
55. The evidence of PW-10 is also relevant. He had stated that A-7 and A-8 had approached him to prepare six seals of various sizes in the names of various Government organisations. He had identified those seals which were affixed in Ex.P-13 the duplicate document. The seals were marked as Ex.P-45 and Ex.P-50. Further PW-11 stamp vendor had also been examined to speak about Ex.P-13 and he stated that the stamp paper in which Ex.P-13 had been prepared was not sold by him and though a signature was found, in Ex.P-13, in the name, G.Manogaran, it was not his signature.
56. It is thus seen that Ex.P-13 is a forged document affixed with false seals and prepared on a fraudulently purchased stamp paper.
57. PW-12 was Sub Registrar in Anna Nagar Sub Registrar Office, He also stated that the signature of the Sub Registrar in Ex.P-13 was different, the name was different and the round seal was also different. The big seal used by the Sub Registrar Office was not found in Ex.P-13. https://www.mhc.tn.gov.in/judis 29
58. All these evidences clearly show that A-1, A-2 and A-3 were directly involved in criminal conspiracy in preparing a fraudulent document to obtain loan from REPCO Bank, Pallavaram Branch. The evidence points out to the participation of A-3 and A-7. But there is no evidence regarding the participation of A-4.
59. The evidence of PW-14 is also very relevant. He stated that A-7 and A-8 requested him to type a sale deed in the name of Dayanidhi and he identified Ex.P-13 as the document which he typed. He also identified the particular letters of his type writer machine.
60. The learned Judge in the course of his Judgment had however made a very significant error when he observed that the loan had been sanctioned by A-4. The loan was not sanctioned by A-4 but rather by the Officials in the Head Office.
61. As Branch Manager, A-4 had authority to sanction loan only upto Rs.1/- lakh. In cases where higher loan was sought, he had to forward the papers to the Head Office. They had the discretion to either approve or to refuse to approve sanction of loan. In this connection, before forwarding the papers A-4 had actually also obtained legal opinion. The legal opinion had https://www.mhc.tn.gov.in/judis 30 been marked as Ex.P-32.
62. An Advocate Dr.G.Headweige had issued a legal opinion on 24.03.2000. He had actually given the opinion on the basis of a false and fabricated document in the name of S.P.Dayanidhi marked as Ex.P-13. However, he had given an opinion that the false S.P.Dayanidhi had “good, valid, bonafide and marketable title in respect of the schedule property to create a registered mortgage deed”.
63. On the basis of such opinion, A-4 had forwarded the loan application documents for approval of loan as sought by A-1 and A-2. The approval letter was sent by the Head Office to the Branch Office on 13.05.2000. This was Ex.P-34. This was marked by PW-7 who was Executive Director of REPCO Bank at the time of his evidence. He identified Exs.P-34 and Ex.P-35, the loan assessment report and Ex.P-36, the loan sanction letter. The loan sanction letter was signed by the Divisional Manager and by the Managing Director of REPCO Bank.
64. He also identified Ex.P-37 and P-38 which were letters https://www.mhc.tn.gov.in/judis 31 executed by A-1 that they had actually given fraudulent documents to obtain loan and undertook to repay the loan.
65. Mr. V. Karthick, learned Senior Counsel on behalf of A-4 placed reliance on Ex.P-41 which was the order passed in a departmental action initiated apart A-4. The order is extracted below:-
“ ORDER All the charges framed against Sri. T.S. Sundaram Viz., Gross Negligence in discharge of duties, deliberate violation of L.S.O conditions, Deviation from stipulated procedures and total callousness while reporting to Head Office are proved beyond doubt. The Charges are very serious in Nature with financial implications to the Bank warranting major punishment.
Considering his long years of service, a lenient view is taken though the charges are proved. He is deemed to one scale lower from present scale.
This is, however, without prejudice to holding him responsible personally for any financial loss to https://www.mhc.tn.gov.in/judis 32 the Bank due to his commissions/omissions and recovery of such losses from him in future. His pay will be fixed in Scale-II in the stage where he would have been had he continued as Scale – II Officer.
This order takes immediate effect.
Sd/-
Managing Director” General Manager (Admin)”
66. It was dated 22.11.2001 and had been signed by Managing Director and also by the General Manager (Admin.). It was stated that the charge framed against A-4 was gross negligence in discharge of duties, deliberate violation of L.S.O conditions, deviation from stipulated procedures and total callousness while reporting to Head Office. There was no charge that he had criminally associated himself with A-1, A-2 and A-3 and was instrumental in furnishing false and fabricated documents to obtain loan for A-1 and A-2. There was also no charge of receiving illegal gratification.
67. It is thus seen that the prosecution has produced substantive evidence only against A-1, A-2 and A-3 and against A-7 and A-8. But there https://www.mhc.tn.gov.in/judis 33 is no evidence directly holding that A-4 was a member of criminal conspiracy along with A-1, A-2, A-3, A-7 and A-8 to prepare and present forged and fraudulent documents.
68. As stated above, the conduct of A-4 in lodging a complaint is very significant. He had not tried to cover up the issue, rather he had invited police investigation on the issue.
69. The learned Judge had thought that it would be appropriate to acquit A-5 and A-6 of all charges. The prosecution has not filed any appeal against such acquittal. The learned Trial Judge had held that A-4 had forwarded the recommendation of the loan process which was scrutinized by A-5 to the Central Office. A-4 had signed the recommendation. A-4 had also issued the cheque of Rs.24/- lakhs after deducting Rs.1/- lakh as per rules of the Bank. The cheque had been marked as Ex.P-9. The trial Judge had therefore convicted A-4 on the ground that he had processed the loan papers.
70. But the issue actually is whether at that particular point of time, https://www.mhc.tn.gov.in/judis 34 A-4 knew that A-3, who projected himself as Dayanidhi was not actually Dayanidhi. That is the issue which should have been addressed by the trial Judge. There is no evidence produced by the prosecution to show that A-4, at the time when A-1, A-2 and A-3 were introduced to him by A-5, knew that A-3 was not S.P.Dayanidhi. In view of absence of evidence on this particular point, the processing of the papers given by A-1, A-2 and A-3 was done as is normally done by any Branch Manager. It is similar to the legal opinion given, which was also based on a forged document.
71. It is not the case of the prosecution that A-4 had knowledge that the papers were fraudulently prepared for the loan to be sanctioned. He had recommended the loan to be sanctioned in the normal course of business on the belief and trust that A-3 was actually Dayanidhi and not Jayaseelan. The fact that A3 was actually Jayaseelan and not Dayanidhi was known directly to A-2 but the trial Judge had acquitted A-2 and the prosecution has not filed any Appeal against such acquittal. When A-2 had direct knowledge that her brother S.Jayaseelan was impersonating in front of her as S.P.Dayanidhi and was signing documents as S.P.Dayanidhi in her presence then she must have been part of the conspiracy. But she has been https://www.mhc.tn.gov.in/judis 35 acquitted by the trial Judge. I would find fault with the trial Judge for having acquitted A-2 but since there is no appeal filed by the prosecution, the matter has to rest there. However, the role of A-4 was only to process the papers. There is no evidence produced to show that he was aware of the conspiracy or that he was a one of the conspirators.
72. I hold that the finding by the learned Judge that A-4 was the centre and other accused's roles were performed only with his consent and participation is based on surmises and presumption and certainly based on prejudice with a predetermined decision to convict A-4.
73. PW-30 was also examined by the prosecution. He was the Investigating Officer till 30.06.2003. During his cross examination, he admitted that he had not examined the advocate who had given the legal opinion which was the actual base document for sanction of loan since it was that legal opinion which cleared the title of the property and which legal opinion was actually based on a fraudulently prepared document.
74. During his cross examination, PW-31, the Investigating Officer https://www.mhc.tn.gov.in/judis 36 admitted that he did not make any preliminary enquiry with A-4, who was a public servant. PW-31 was cross examined with the role of PW-7 R.Varadharajan and he very specifically stated as follows:
“tujuhrd; bghpa mjpfhhp mtUf;F
fld; ghpe;Jiufs; bra;ag;gl;lhy; mjpy;
vd;bdd;d Mtz';fs; mtrpakhdJ
bjhpa[k; vd;why; rhpjhd;/ MdhYk;
vd;dplk; V 4 kPJ Fiwahf Twpa
Mtzk; VJk; tpsf;fk; nfl;L
bgwtpy;iybad;why; rhpjhd;/ tHf;F V4
kPJ bjhLf;f fl;lhaj;jpd;nghpy; mDkjp
tH';fg;gl;lJ vd;why; rhpay;y/
tujuhrd; me;j Fiwfis nfl;L V4
f;F jpUg;gpaDg;gpapUe;jhy; ,e;j CHy;
jLf;fg;gl;oUf;Fk; ,e;j jtW
ele;jpUf;fhJ vd;why; rhpjhd;/ ,e;j
KiwnfLfs; tujuhrd; cah; mjpfhhp
mthpd; tha;bkhHp cj;jutpd;nghpy; fPH;
mjpfhhpfs; ele;Jbfhs;thh;fs;/ Mfnt
jiyik mYtyfk; Twpagojhd; V4
ghpe;Jiu bra;jhh; vd;why; rhpjhd;/ V4
ve;j jtWk; bra;atpy;iy cah; mjpfhhp
tha;bkhHp cj;juit mth; Twpago
mDg;gpitj;jhh; vd;why; vdf;F
https://www.mhc.tn.gov.in/judis
37
bjhpahJ/”
75. The above evidence very clearly establishes that A-4 cannot be held to be guilty of the charges levelled against him. He had only forwarded the papers given by A-1, A-2, and A-3 and the loan was sanctioned by PW-7 R.Varadharajan, who as stated earlier, was at the time of tendering evidence, was working as Executive Director of REPCO Bank. At the time of the incident, he was the General Manager in the Head Office of REPCO Bank. He had sanctioned the loan. He had deposed evidence on behalf of the prosecution. The evidence of PW-31 however shows that there is no direct proof, even according to the Investigating Officer with respect to the role of A-4 in preparing the forged document or that he had knowledge that A-3 was actually Jayaseelan and not Dayanithi.
76. In Bhagwan Singh and others Vs. State of Madhya Pradesh, (2002) 4 SCC 85, the Hon'ble Supreme Court held as follows:-
"the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused https://www.mhc.tn.gov.in/judis 38 and the other to his innocence, the view which is favorable to the accused should be adopted."
77. In view of the above dictum, I would set aside the conviction and sentence passed against A-4 and allow Crl.A.No. 289 of 2010.
78. With respect to A-3 and A-7 as discussed above, there is direct evidence of A-3 impersonating as PW-2 S.P.Dayanidhi. The documentary evidence and the oral evidence states in the face of A-3. He has been rightly convicted by the trial Judge. I am not prepared to reverse such conviction.
79. Against A-7 as discussed earlier, he had been instrumental in preparing the fake stamp papers and fake seals in which the fraudulent document Ex.P-13 was prepared. Therefore, he had also been rightfully convicted by the trial Judge. The charges against A-8 has abated since he had died.
80. The contention of the learned counsel for A-3 and A-7 that specimen signatures were not obtained in the presence of the Magistrate are rejected since Section 311A of Cr.P.C., was introduced only subsequently https://www.mhc.tn.gov.in/judis 39 and not at the time when specimen signatures of A-7 were obtained. PW-10 and PW-8 have very clearly spoken that the document Ex.A-13 is a false document. PW-11 and PW-31 also spoke about the direct role of A-7. In view of these facts, the conviction and sentence against A-3 and A-7 are confirmed. Therefore, Crl.A.No. 323 of 2010 is dismissed against A-3 and A-7. It stands abated against A-8, who had since died and naturally the charges against A-8 also stands abated.
81. In the result,
(a) A-4 is acquitted of all charges;
(b) A-9 is acquitted of all charges;
(c) the fine amount if any paid by A-4 and A-9 are directed to be refunded. The bail bonds executed shall stand cancelled.
82. (a) The conviction against A-3 and A-7 are confirmed. A-3 and A-7 and found guilty for offence under Section 120-B IPC. A-3 is found guilty for offence punishable under Section 420 IPC. A-3 https://www.mhc.tn.gov.in/judis 40 is found guilty for offence punishable under Section 419 IPC.
A-7 is found guilty for offence punishable under Section 419 read with 120-B IPC.
A-3 is found guilty for offence punishable under Section 467, 468 and 471 IPC.
A-7 is found guilty for offence punishable under Section 467, 468 and 471 read with 120-B IPC.
The conviction against A- 3 and A-7 are maintained. A-3 and A-7 are convicted and sentenced to undergo 6 months rigorous imprisonment and both imposed with fine of Rs.5,000/-, in default 3 months simple imprisonment for offence under Section 120-B IPC.
A-3 is convicted and sentenced to undergo imprisonment for 5 years rigorous imprisonment and sentenced to pay fine of Rs.10,000/-, in default, https://www.mhc.tn.gov.in/judis 41 simple imprisonment for a period of 3 months for offence punishable under Section 420 IPC.
A-3 is convicted and sentenced to undergo imprisonment for a period of two years rigorous imprisonment and sentenced to pay fine of Rs.5,000/-, in default simple imprisonment for 3 months for offence punishable under Section 419 IPC.
A-7 is convicted and sentenced to undergo imprisonment for a period of 2 years rigorous imprisonment and imposed with fine of Rs.5,000/- in default 3 months simple imprisonment for offence under Section 120-B IPC.
A-3 and A-7 are convicted and sentenced to undergo period of 5 years rigorous imprisonment and sentenced to pay fine of Rs.10,000/- in default simple imprisonment for a period of 3 months for offence under Sections 467, 468, 471 read with 120-B IPC.
The substantive sentences are directed to run concurrently. The period already undergone by A-3 and A-7 are directed to be set off under Section 428 Cr.P.C.
https://www.mhc.tn.gov.in/judis 42 The trial Court IV Assistant Sessions Court, Chennai is directed to secure A-3 and A-7 forthwith to undergo remaining period of sentence if any.
83. In the result, (1) Crl.A.No. 289 of 2010 is allowed and the sentence and conviction of A-4 is set aside;
(2) Crl.A.No. 296 of 2010 is allowed and the sentence and conviction of A-9 is set aside;
(3) Crl.A.No. 323 of 2010 is dismissed with respect to A-3 and A-7 and the sentence and conviction against A-3 and A-7 are upheld. The Criminal Appeal is dismissed against A-8 as abated.
.11.2021 Index:Yes/No https://www.mhc.tn.gov.in/judis 43 Internet:Yes/No vsg To
1. Deputy Superintendent of Police Organised Crime Unit (Chennai City) CBCID Chennai – 600 002.
2. IV Additional Sessions Court, City Civil Court, Chennai.
C.V.KARTHIKEYAN, J vsg https://www.mhc.tn.gov.in/judis 44 Pre-delivery Judgment made in Crl.A.Nos. 289, 296 & 323 of 2010 .11.2021 https://www.mhc.tn.gov.in/judis